CJEC, December 4, 1986, No 71-85

THE COURT

1 By order of 13 march 1985, which was received at the court on 18 march 1985, the gerechtshof (regional court of appeal), the hague, referred to the court for a preliminary ruling under article 177 of the eec treaty three questions on the interpretation of article 4 of council directive 79-7-eec of 19 december 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (official journal 1979, l 6, p. 24) in order to determine whether that provision may be regarded as having had direct effect in the Netherlands since 23 december 1984, the date on which the member states should have adopted the measures needed to comply therewith.

2 Those questions were raised in connection with an action brought by federatie nederlandse vakbeweging (Netherlands trades union federation) against the State of the Netherlands. The purpose of that action is to obtain a finding that the State of the Netherlands acted unlawfully by maintaining in force or refusing to cease to apply after 23 december 1984 article 13 (1) point l, of the wet werkloosheidsvoorziening (law on unemployment benefit), which excludes from ' the right to benefit workers who, having the status of married women, may not be described as bread-winners (' kostwinster ') under rules adopted by the competent minister after consulting the central commission, or who do not live permanently separated from their husbands '. The federatie nederlandse vakbeweging maintains that married women disqualified from receiving unemployment benefit under that provision acquired a right to those benefits under the combined provisions of the wet werkloosheidsvoorziening and article 4 of directive 79-7-eec.

3 It is not contested that article 13 (1) point l, of the wet werkloosheidsvoorziening is contrary to the principle of equal treatment as defined in article 4 of the directive.

4 It appears from the documents before the court that the Netherlands government initially intended, as part of a wide-ranging reform of the social security system, simultaneously to transpose the directive into national law and to merge the wet werkloosheidsvoorziening and the werkloosheidswet (law on unemployment). That reform was to include the repeal of the bread-winner requirement.

5 When it appeared that that merger could not be effected by 23 december 1984, a provisional bill amending article 13 (1) point l, of the wet werkloosheidsvoorziening and designed to extend the bread-winner requirement to unemployed males was tabled by the government but rejected by the second chamber of the states-general on 13 december 1984. By letter dated 18 december 1984, the state secretary for social affairs and employment informed the president of the second chamber of the states-general that a new bill would be submitted whose provisions would take effect retroactively from 23 december 1984, in order to implement the directive within the period prescribed. The states-general was asked to approve the bill by 1 march 1985 (bill no 18849 submitted on 6 february 1985).

6 Furthermore, the state secretary notified the competent authorities, by circular dated 21 december 1984, that the contested provisions of the wet werkloosheidsvoorziening had to continue to be applied pending the retroactive amending law.

7 The respondent in the main proceedings, the federatie nederlandse vakbeweging, whose statutory objects include safeguarding workers and their families, summoned the state in interlocutory proceedings before the president of the arrondissementsrechtbank (district court), the hague, seeking an order requiring the state to suspend, or at least not to give effect until new published legislation entered into force to article 13 (1), point l, of the wet werkloosheidsvoorziening as far as concerns the bread-winner rule. By order of 17 january 1985 the president ordered the state to amend the relevant article 13 before 1 march 1985. The state and the federatie nederlandse vakbeweging appealed against that decision.

8 The gerechtshof, on appeal, considered that the effect of directive 79-7-eec was unclear and so it suspended the proceedings and referred to the court for a preliminary ruling the following three questions:

' 1. Has article 4 of directive 79-7-eec had direct effect since 23 december 1984 and does this mean that from that date article 13 (1) point l, of the wet werkloosheidsvoorziening is inapplicable and that the women excluded by that provision acquired entitlement to benefit as from that same date?

2. In that respect, does it matter whether, apart from having the possibility of simply repealing the provision referred to in question 1, the state had alternative possibilities for complying with the directive? For example, in repealing the aforesaid provision and in order to finance the extra costs involved, it could have made more rigorous the conditions for the acquisition of entitlement to benefit and limited it to unemployed persons under 35 years of age.

3. Does it matter, in that respect, that a transitional provision is necessary owing to the repeal of that provision and that a choice must be made between alternative measures? '

9 It appears from the documents before the court that article 13 (1) point l, of the wet werkloosheidsvoorziening has been repealed, with retroactive effect from 23 december 1984, by the law of 24 april 1985 (staatsblad 230), which entered into force on 1 may 1985. That law provides that the abolition of the bread-winner requirement is not to apply to workers whose unemployment commenced before 23 december 1984. In order to secure the funding of the benefits scheme under the wet werkloosheidsvoorziening, the law also reduces the duration of such benefits in the case of unemployed persons - male and female alike - of under 35 years of age.

10 It follows that since the entry into force of the law of 24 april 1985 male and female unemployed persons are subject to the same system, also as regards the period between 23 december 1984 and the date of entry into force of the new law; however, differences based on the status of bread-winner continue to affect the entitlement to benefit of unemployed persons whose unemployment commenced before 23 december 1984.

11 Reference is made to the report for the hearing, appended hereto, for the detailed arguments of the parties.

The first question

12 In its first question the gerechtshof essentially seeks to establish whether article 4 (1) of the directive causes individuals to acquire rights as from the expiry of the period granted to the member states in which to comply with the directive and, if so, whether married women excluded by national legislation acquired entitlement to benefit as from that date on the same conditions as men.

13 As the court has consistently held, in particular in its judgment of 19 january 1982 in case 8-81 becker v finanzamt munster-innenstadt (1982) ecr 53, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, individuals may rely on those provisions in the absence of implementing measures adopted within the prescribed period as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the state.

14 That principle is based on the fact that it would be incompatible with the binding effect which article 189 of the eec treaty ascribes to directives to exclude in principle the possibility of the obligation imposed by them being relied on by persons concerned. The court therefore considered that a member state which has not taken measures to implement the directive within the prescribed period may not, as against individuals, plead its own failure to perform the obligations which the directive entails.

15 The gerechtshof wishes to know whether article 4 (1) of the directive may be held to have the characteristics described above and whether, as a result, that article caused individuals in the Netherlands to acquire rights between 23 december 1984, the date on which the directive should have been transposed into national law, and the date on which the new national legislation on that matter was adopted.

16 Article 1 of directive 79-7-eec sets out its aims in the following terms: ' the purpose of this directive is the progressive implementation, in the field of social security and other elements of social protection provided for in article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as ' ' the principle of equal treatment ' ' '.

17 As the court recently held its judgment of 24 june 1986 in case 150-85 drake v chief adjudication officer (1986) ecr 1995), the objective set out in article 1 of directive 79-7-eec is given practical expression by article 4 (1), which provides that in matters of social security there shall be no discrimination whatsoever on grounds of sex, either directly or indirectly by reference in particular to marital or family status, in particular as concerns the scope of social security schemes and the conditions of access thereto.

18 It must be pointed out that, standing by itself, and in the light of the objective and contents of directive 79-7-eec, article 4 (1) precludes, generally and unequivocally, all discrimination on grounds of sex. The provision is therefore sufficiently precise to be relied upon in legal proceedings by an individual and applied by the courts. However, it remains to be considered whether the prohibition of discrimination which it contains may be regarded as unconditional, having regard to the exceptions provided for in article 7 and to the fact that according to the wording of article 5 member states are to take certain measures in order to ensure that the principle of equal treatment is applied in national legislation.

19 As regards, in the first place, article 7, it must be observed that that provision merely reserves to member states the right to exclude from the scope of the directive certain clearly defined areas but lays down no condition with regard to the application of the principle of equal treatment as regards article 4 of the directive. It follows that article 7 is not relevant in this case.

20 As for article 5, which obliges member states to take ' the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished ', it cannot be inferred from the wording of that article that it lays down conditions to which the prohibition of discrimination is subject. Whilst article 5 leaves the member states a discretion with regard to methods, it prescribes the result which those methods must achieve, that is to say, the abolition of any provisions contrary to the principle of equal treatment.

21 Consequently, article 4 (1) of the directive does not confer on member states the power to make conditional or to limit the application of the principle of equal treatment within its field of application and it is sufficiently precise and unconditional to allow individuals, in the absence of implementing measures adopted within the prescribed period, to rely upon it before the national courts as from 23 december 1984 in order to preclude the application of any national provision inconsistent with that article.

22 It follows that until such time as the national government adopts the necessary implementing measures women are entitled to be treated in the same manner, and to have the same rules applied to them, as men who are in the same situation, since, where the directive has not been implemented, those rules remain the only valid point of reference.

23 The answer to the first question should therefore be that, where no measures have been adopted to implement council directive 79-7-eec of 19 december 1978, article 4 (1) thereof, which prohibits all discrimination on grounds of sex in matters of social security, could be relied on as from 23 december 1984 in order to preclude the application of any national provision inconsistent with that article. In the absence of measures implementing that article women are entitled to be treated in the same manner, and to have the same rules applied to them, as men who are in the same situation, since, where the said directive has not been implemented, those rules remain the only valid point of reference.

The second and third questions

24 As regards the second and third questions which have been referred to the court by the gerechtshof and which seek to ascertain whether, in order to adapt its legislation in accordance with the principles of the directive, a member state may have recourse to methods other than the straightforward repeal of the rule which is incompatible with the directive and, in particular, whether a transitional provision is necessary, it is sufficient to observe, as the court has already held in its judgment of 19 january 1982 in becker, cited above, that the fact that a directive leaves choice of the form and methods for achieving the desired result to the member states may not be relied upon in order to deny all effect to those provisions of the directive which may be invoked in legal proceedings even though the said directive has not been implemented in its entirety.

25 The answer to the second and third questions must therefore be that a member state may not invoke its discretion with regard to the choice of methods for implementing the principle of equal treatment in the field of social security laid down in directive 79-7-eec in order to deny all effect to article 4 (1) thereof, which may be invoked in legal proceedings even though the said directive has not been implemented in its entirety.

Costs

26 The costs incurred by the united kingdom and by the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court,

In answer to the questions submitted to it by the gerechtshof, the hague, by order of 13 march 1985,

Hereby rules:

(1) Where no measures have been adopted to implement council directive 79-7-eec of 19 december 1978, article 4 (1) thereof, which prohibits all discrimination on grounds of sex in matters of social security, could be relied on as from 23 december 1984 in order to preclude the application of any national provision inconsistent with that article. In the absence of measures implementing that article women are entitled to be treated in the same manner, and to have the same rules applied to them, as men who are in the same situation, since, where the directive has not been implemented, those rules remain the only valid point of reference.

(2) A member state may not invoke its discretion with regard to the choice of methods for implementing the principle of equal treatment in the field of social security laid down in directive 79-7-eec in order to deny all effect to article 4 (1) thereof, which may be invoked in legal proceedings even though the said directive has not been implemented in its entirety.